Land Bank meeting re Draft Interim Management Plan for Lopez Channel Preserve

From Tim Clark, Lopez Preserve Steward:

The Land Bank will be meeting on Friday, March 16th from 8:30 to 11:00 am, at the Mullis Center, 589 Nash Street in Friday Harbor. The DRAFT interim management plan for Lopez Channel will be considered then at a public hearing during the proposed Amended Acquisition and Expenditure Plan. The link to the page with the interim management plan is http://sjclandbank.org/minutes/ . You can find it listed on that page, or it is included on the Amended A&E Plan. In the future, you can check on management plans by going to ‘About’ on the upper tab, then clicking on ‘Commissioners’, which will get you to ‘Agendas’. Interim management plans are not always listed, but this one is. Another way to find the interim plan is under ‘About’, then ‘Financial Information’. Management plans are always approved within a budget, which is why they are found under the finances.

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Draft Interim Management Plan for Lopez Channel Preserve

The Land Bank has released the draft Interim Management Plan for the Lopez Channel Preserve as part of the Proposed Amended 2018 Expenditure and Acquisition Plan. The plan was initially set to be considered at the February 16th meeting, but due to the omission of the plan from the meeting agenda the public hearing has been moved to the next Commission meeting:

Date: Friday, March 16th, 8:30 a.m.
Location: Mullis Center, 589 Nash Street, Friday Harbor

Download the Proposed Amended 2018 Expenditure and Acquisition Plan here.

 

Land Bank approves Clure purchase

At the April 21 Land Bank meeting on Lopez Island, the Land Bank Board voted to approve the purchase of the Clure properties. All members voted to approve except for Jim Skoog, who recused himself.

We have not given up! The Land Bank has approved this project despite failing to resolve the following issues:

  • Access: The Land Bank is claiming that they can access the property over Meadow Lane, but government agencies cannot legally convert a private road to public use without going through a formal eminent domain process; the Land Bank board has stated they do not intend to follow this process.
  • Lopez Airport: The FAA has informed the Port of Lopez that their federal funding is in jeopardy if an access is granted through the airport Runway Protection Zone. The Land Bank board has dismissed all concerns about this threat to the Port of Lopez.
  • Trespassing: In response to concerns by residents, the Land Bank has offered only vague assurances that signs will be erected to prevent visitors from trespassing on the private portion of the beach. However, evidence from other public areas shows that signage by itself does not prevent trespassing.
  • Fire and emergency services: The proposed preserve is inaccessible from land for firefighting or other emergencies. The Land Bank has not proposed any ideas for how fire or other emergencies will be handled on this remote beach.
  • In short, the Land Bank has been unable to address ANY of the concerns that citizens have about possible impacts of this proposal on the neighborhood or the environment, choosing instead to endlessly repeat that “it will all be worked out in the management plan.” We feel the Land Bank board is abrogating its responsibility to the citizens and taxpayers of San Juan County to approve such a complex, divisive project based on misinformation, baseless supposition, and vague promises.

The purchase must still be approved by the County Council before it goes ahead. We do not have a date yet for when the Council will vote on this issue, so there is still time to write to the Council and voice your opposition:

San Juan County Council

Bill Watson: bill.watson630@gmail.com
District 1
Phone: 360-370-7473

Rick Hughes: Rickh@sanjuanco.com
District 2
Phone: 360-298-5103

Jamie Stephens: jamies@sanjuanco.com
District 3
Phone: 360-378-2898

Mailing Address:
350 Court Street, No. 1
Friday Harbor, WA 98250
Telephone:
360-378-2898

Land Bank votes to extend feasibility period…again

The action item on the Friday’s Land Bank Agenda was whether to the extend the Feasibility Period to give the Clures more time to obtain an easement for public access off Shark Reef Road, or drop the proposed purchase.

We presented the results of our visit with the FAA and our review of the Port FAA Grants, made several oral presentations, and delivered several letters from our group opposing the Purchase.

Regrettably, the Land Bank took our new information under advisement, said the easement issue was between the Port and the Clures, and voted to extend the feasibility period to its April 21 Meeting on Lopez.

We will do everything we can to resolve this issue favorably, but please plan now to make the April 21st Lopez Land Bank meeting.

Letter from Kate Scott to Port of Lopez

Port Commissioners:
Steve Adams
Dan Post
Kenn Aufderhar

Dear Commissioners,

I am writing to ask you to please deny public access to the Clure property across Port land.

An email received from the Trails folk has stated that  “a few neighbors have mounted a strong opposition to the Preserve, with some valid concerns and several alternative facts and plenty of $.”

I would like to point out that we are more than “a few neighbors” who are opposing this  purchase.  There are at least 38 of us whose property abuts the beach in question – and only one of them approves of opening this pristine beach to the public.  The Trails folks’ email shows a lovely photograph of the long unspoiled beach  and says it “affords miles of beach available for the public to walk on.”   In truth, the photo shows almost all private  property.  The  rocky tide flats in the bottom part of the picture are where the public could legally walk, and even then only when the tide is out.   And what exactly is “plenty of $” insinuating?  That we are all rich landowners and we just don’t want to share?  What exactly was “plenty of $”  spent on? Looks to me like alternative facts  they refer to did not come from our side.

I  purchased my land (with its two falling down shacks) on  Channel Road in 1989, and it was still relatively inexpensive. I am not even remotely wealthy.  Most of the property owners I know personally along this beach have owned their properties since the 70s and before. All of us that live along this two mile stretch of beach care immensely that this beach stay the wild and unspoiled beach that it is; not because of some NIMBY attitude as implied,  but because we understand that it’s the very inaccessibility that keeps it that way and is what has kept us good stewards of it.

This beach is home to all manner of wild animals who call it home. Deer swim across the channel.  Mamma seals  bring their babies ashore to wait patiently while they fish, sometimes there at the foot of Meadow Lane, and also points much further north. Otters roam freely  up and down the beach as well as the banks.  Many, many different bird species nest and make their living here, including  families of eagles that have nested here since the  50s. Again, it’s the very inaccessibility that keeps this beach wild and unspoiled.

The Trails group seem to have dialed back their “last wild and unspoiled beach on Lopez” description in this latest email.  Now they just say it’s a nice place for the public to walk; and  “this nice place would be visited by a few more of us (the public which does include outsiders).”   That sounds like a vast understatement to me, given the number of people that visit nearby Shark Reef County Park every summer.   I  can only assume they have realized that hordes of people on the beach in the summer would mean it wouldn’t stay very wild and pristine for very long, and so are now describing it as “nice.”    How can it possibly “preserve the wildness” of this beach by opening it up to  lots and lots of people and their no doubt numerous dogs?  It is a contradiction in terms to say that.   Plus what interpretation  of “wild”  includes  beach signs cluttering up the landscape?

While they tout that it’s “a great benefit to our community as a space for walking and access to sit along the shoreline,” we already have numerous public beaches on the west side on which to do those things.  One can even play in the surf and enjoy sunsets from these other beaches.

They also say people walking the beach would have “…no intent to neither trespass on private lands nor harm neighbors.”  When in fact, intent is  completely separate from actuality.  Even our Lopez County Commissioner’s wife, whose land abuts a public access beach in the village, testified that people paid no attention to the posted “private property” signs and walked right by them all the time.

Lastly, the email states that “Fire and EMS access here is easier than at several other public lands and parks on Lopez.”  This can only be referring to access  through Meadow Lane, the only spot along the whole two mile stretch of beach where fire and EMS could even get near a beach.  There is absolutely no access of any sort for that type of equipment on any of the rest of the properties. All but the Clure properties are high bank, with no access anywhere near the banks.  The Lopez Fire Chief has advised that the chance of a major fire greatly increases with public access. He also said  Lopez fire equipment and EMS vans can’t navigate the Clure beach access; so the best firefighters can do is walk in with 5-10 gallon water back-packs. He further said “early detection by homeowners is key” because if a fire catches hold on the dry grasses of the bluff, there is little they can do to contain it.

For these many reasons,  I ask you respectfully to please not grant access to the Clure property over Port land.

Thank you very much,

Kat Scott
Lopez Island

Port votes not to approve easement to Clure property

About twenty of our supporters attended last night’s Port of Lopez meeting. The Port commission thoughtfully moved the venue to Woodmen Hall to accommodate the large crowd, and allowed over an hour of testimony on the Clure access issue.

The attorney for the Clures, Michael Murray, spoke and threatened a lawsuit on very vague grounds and then claimed the Clures “own” an easement to Shark Reef Road from Meadow Lane—which caused quite a bit of confusion as this alleged easement has never appeared in any prior surveys. The Port voted to deny an easement to the Clure property at this time, and will consult with their attorneys and surveyors again to make sure they have the correct surveys and legal analysis before making a final decision.

The Port will also conduct further research on FAA restrictions in the airport safety zones, which cover both Meadow and Eagles Roost Lanes.

Response to Journal article from Noel McKeehan

This letter is in response to the article “Protecting natural places” in the Journal of the San Juans.

——

Comment: From a recent San Juan Journal article:

“This proposal leads to the question: how do we balance tourism, land rights and conservation?”

My reaction is:

Maybe the “question” should precede the “proposal” not the reverse; a debate of the question, if the outcome were that there is some problem with the current “balance” that revelation might drive a “proposal”. And perhaps it would not be the unsolicited proposal currently on the table.

Or:

“Although private landowners can operate with conservation values, we do not believe that private landowners are necessarily the best stewards of fragile places.”

I am forced to reply:

That’s an assertion that bears some sort of proof.

“We believe in the Land Bank’s mission, and feel it is an ideal protector of natural spaces. Landowners are not subject to the same scrutiny and are also vulnerable to make mistakes.”

There you go again…

You can assert and believe and feel what you want, but assertions are not proof and beliefs are not facts and feelings are just that.

Still more:

“We wonder if a compromise …”

That is a call to action with no case made; only an idiot would want to compromise his property rights and associated property values to a “gee it would really be nice if pigs could fly” proposal.
Or, I can’t help hearing “so, Mr Chamberlain…”

And finally:

“We hope the property owners and the Land Bank can reach an agreement that is satisfactory to all . If the general public does not have access to places of wonder and beauty, they will have less motivation to save these places…”

Who asked them to “save these places? If one reads some of the letters from property owners documenting the beach unfriendly habits and practices of the trespassers, one shudders at the thought of what ‘saving these places’ might entail. ”

—Noel McKeehan

Letter from Larry Bailey re access to Clure Property

LAWRENCE B BAILEY
308 HEMLOCK LANE
LOPEZ ISLAND,WA 98261
(360) 468-3217
January 15, 2017

To: San Juan County Council
San Juan County Land Bank
Port of Lopez

Re: Claim of Public Access to the Clure Property

Ladies and Gentlemen,

We are writing with regard to the Clure’s search for an easement granting public access to their property. We submit that the Clures have only limited, personal access via Meadow Lane to their property for ingress, egress and utilities and that they have no other legal access to their property. We further submit that the easement for Meadow Lane was granted solely to the purchasers of property from Rowland and Marion Davies, their successors and assigns, per that certain “Easement Exchange Agreement and Construction Agreement” signed by the Clures and others recorded February 16,1972 under SJC Recording No.77927; and that the Clures have no legal right to increase usage by the public of the Meadow Lane easement.

1. The Clures have no legal right of access over Port Property.

In a letter to the Port of Lopez dated January 10, 2017, the attorney for the Clures, Michael K. Murray, claims the Clures have an existing easement over Port property. We made a public documents request to the Port for this letter and also reviewed all Port documents pertinent to this claim.

From the Port documents we have seen and from the personal knowledge of our neighbors and myself of the parties and properties since 1975, we believe Attorney Murray’s letter is incorrect both factually and legally.

He enclosed Attorney Souders’ letter of March 29 2005 to the Clures responding to an inquiry by Mrs Clure. Attorney Souders was then the attorney for the Port. There was no mention made in Souders’ letter of any claim of an easement by the Clures over the Port property which the Clures and others had sold to the Port in 1978 by a simple statutory warranty deed. Souders’ letter, which was not copied to the Port or in the records of the Port, responds only to the Clure’s possible right to grant additional easements over their own property, not the Port’s. Souders’ letter does not even address the easement that the Clures are now claiming and in our opinion is irrelevant.

Murray claims the Clures intended to reserve an easement over the property when they sold to the Port and the fact they didn’t was a mistake. He in effect claims the Clure deed to the Port should be rewritten to grant an easement back to the Clures.

That claim is baseless.

Since there was obviously no fraud involved, the only legal basis for claiming that the deed should be rewritten is if there was a “mutual mistake,” or “clerical error” by both the Clures and the Port and that both sides had agreed to the easement. You can safely bet that if the Clures had any factual basis for proving that claim they would have provided such evidence.They didn’t…

There is no evidence of any “mutual mistake” or “clerical error” and no evidence in the Port’s records that an easement to the Clures was ever discussed or considered. In short, their easement claim based on their alleged mistake has no merit.

Attorney Murray then goes on to claim the Clures had “continuous, uninterrupted, use of an existing gravel roadbed…since 1978” and in effect claims a “prescriptive easement” by adverse possession.

Land held by Washington’s governmental entities are generally immune from adverse possession actions. In other words, rights to public lands generally can’t be acquired by adverse possession as against the state or entities like the Port.

“RCW 7.28.090 Adverse possession —Public lands…
RCW 7.28.070 and 7.28.080 shall not extend to lands or tenements owned by the United States or this state… nor to lands held for any public purpose.”

If Attorney Murray can somehow claim that statute doesn’t apply here, the Clures would still have to factually prove their adverse possession claim. To our knowledge they have never used the lane off Eagles Roost, which was just built by the Port in 2001, to visit their property. The Clures have never lived on Lopez or on their property and their visits have been very infrequent over the last 40+ years.They have always driven down Meadow Lane and then over the beach access to their property. To establish a “prescriptive easement” in our state. the Clures would have to factually prove that their use was “open, adverse, notorious, continuous, hostile and uninterrupted over the prescriptive period of ten years.” If they ever used the lane/roadbed,it was not open, notorious, continuous, hostile or uninterrupted and was certainly not adverse. The Washington State Supreme Court has found that the use of someone’s property will be presumed to be with the owner’s permission and therefore not “adverse,” stating: “an initial presumption of permissive use applies to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence… Showing a reasonable inference of neighborly sufferance or acquiescence is a fairly low bar.” Gamboa v. Clark ,183 Wn.2nd 38, 348 P.3d 1214 (2015). In short, neither the facts or law support the claim of a prescriptive easement.

Finally, Attorney Murray claims that, “The easement…does not add or create any rights that the Clure LLC’s do not already have; it is intended to clear title and document these existing easement rights..” As is readily apparent from the foregoing, his statement and claim have no basis in fact or in law.

( As a side note,the Clures and other Meadow Lane owners approached the Port in 1999 requesting the Port to help alleviate excessive water runoff. The Port agreed to do this if the Clures would grant the Port a drainage easement, which the Port would fund, build and maintain. The Clures and the Port entered into an Easement Agreement recorded October 25,2000, SJC Recording No. 2000 1025015 which conditioned the Port’s use as follows: “The easement is not a right of way for access to the shore of the San Juan Channel for any recreational purpose or any other purpose other than constructing, using and maintaining the easement described herein.” It stands to reason that if the Clures thought they had a claim of an easement back over the Port property they would have asserted it at this time. There is no evidence in the Port records that they made any such claim.)

In summary, there are no facts, circumstances, documents, or evidence of any kind that establishes any easement to the Clures over Port Property.

2. The Port is limited by FAA Regulations from granting road and parking easements.

In addition to all the foregoing,the Port is required to comply with all FAA regulations,policies and guidelines as to land uses within a Runway Protection Zone (RPZ). The proposed Clure easement and its intended expanded uses would fall within these policies. The Clure property as well of that of other neighbors is within the Port’s RPZ and they have already sold an Avigation and Hazard Easement to the Port recorded July 13,1978, SJC Recording No.102458 which prohibits any construction and tall trees in the RPZ and permits the Port to remove any construction and tall trees. The most recent guidance we found in the Port’s records from the FAA on land uses within an RPZ is dated September 27, 2012. This guidance requires the Port to consult and coordinate with the FAA when there is any change in land use within the RPZ, such as “recreational land use…places of public assembly…public roads…vehicular parking facilities…” Prior to seeking FAA approval, the Port is first required to work with FAA staff to: “Avoid introducing the land use…minimize the impact of the land use…and mitigate risk to people and property on the ground.” The FAA guidance goes on to state that: “Land uses prohibited from the RPZ are…places of public assembly…”

3. Public Access over Meadow Lane or Eagles Roost is not an option.

Both Meadow Lane and Eagles Roost are private roads established by easements granted with the sale and purchase of adjoining land. They are maintained by the respective homeowner groups and are open only to the owners and their invitees. They are not public roads in any sense and are not built to county road standards. The road easement that is now called Meadow Lane was established by the above described 1972 Easement Exchange Agreement and Construction Agreement. The Clures and all other Meadow Lane owners at that time signed the agreement which provides in part: “4. It is further agreed that the new relocated roadway and easement shall run with land of the parties hereto in said Government Lot 2 and be appurtenant thereto,and that neither it nor any portion thereof shall be assigned or granted to any other persons except those as may be or become persons who have an ownership interest in said land and said Government Lot 2.”

This easement was also included in the deed each purchaser received from the Davies.The easement is “non-exclusive” which means the person whose land is used for the easement retains the privilege of sharing the easement benefits with the persons holding the easement rights.

We believe it is clear, based on this agreement, the property deeds, and the facts and circumstances in 1972, that this ingress and egress easement, now called Meadow Lane, was intended to serve and benefit only the 10 parcels into which the Davies farm was divided and the “persons” who purchased them. The homeowners of Meadow Lane are united in their opposition to any public entity purchasing the Clure property and seeking to access it by Meadow Lane. In short, we will legally challenge any significant increase in the traffic, vehicles or pedestrians, on our private easement.

In the same vein, a majority of the homeowners on Eagles Roost oppose any public entity purchasing the Clure property and seeking to access it by Eagles Roost and will challenge any significant increase in the traffic, vehicles or pedestrians, on their private easement.

We believe the law of easements in our state fully supports our position. In considering the scope of an easement, our Washington courts have held in numerous cases that it is the duty of the court to ascertain and give effect to the intention of the parties as determined by the language of the grant and consider the situations and circumstances of the parties at the time of the grant. Our courts have consistently held that use of an easement cannot be substantially enlarged or materially changed so that an unreasonable, increased burden on the servient estate results. Green v.Lupo, 32 Wash App.318,647 P.2d 51 (1982); Zobrist v. Culp, 95 Wash.2d 556,627 P,2d 1381(1981); Brown v. Voss, 105 Wn.2d 366,715 P.2d514 (1986).

Consequently, the use of Meadow Lane and Eagles Roost is limited to the use that is reasonably necessary for the intended purpose of the easement and no easement owner may materially increase the burden or impose new burdens on the underlying easement landowners.

We submit that on the basis of the facts, circumstances, and Washington law, the Clures have only limited, personal access via Meadow Lane to their property and that they have no other legal access to their property via the Port property or Eagles Roost Lane.

Respectfully Submitted,

Larry Bailey
On behalf of savelopezshoreline.org